Date: 20080424

Docket: A-170-07

2008 FCA 153 (CanLII)

Citation: 2008 FCA 153

CORAM: DÉCARY J.A.

NADON J.A.
TRUDEL J.A.

BETWEEN:

PANCHALINGAM NAGALINGAM

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Heard at Toronto, Ontario, on January 24, 2008.

Judgment delivered at Ottawa, Ontario, on April 24, 2008.

REASONS FOR JUDGMENT BY: TRUDEL J.A.

CONCURRED IN BY: DÉCARY J.A.

NADON J.A.
 Date: 20080424

Docket: A-170-07

2008 FCA 153 (CanLII)

Citation: 2008 FCA 153

CORAM: DÉCARY J.A.

NADON J.A.
TRUDEL J.A.

BETWEEN:

PANCHALINGAM NAGALINGAM

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

TRUDEL J.A.

[1] This is an appeal from a decision of Justice Kelen (cited as 2007 FC 229) sitting in

judicial review, whereby he dismissed the application of Panchalingam Nagalingam (the

appellant) to set aside the Opinion of the Minister of Citizenship and Immigration (the

Minister) pursuant to paragraph 115(2)(b) of the Immigration and Refugee Protection Act,

S.C. 2001, c. 27 (the Act).

 Page: 2

[2] In making his decision Justice Kelen found, and both parties agreed, that the

application raised “questions of general importance with respect to the refoulement, or

removal from Canada, of refugees who have been found to be persons inadmissible on

grounds of organized criminality” (at paragraph 2 of the Reasons for Judgment). He

2008 FCA 153 (CanLII)

therefore certified the following two questions:

1. If, in the preparation of an opinion under paragraph 115(2)(b) of the

Immigration and Refugee Protection Act, the Minister finds that a refugee who
is inadmissible on grounds of organized criminality does not face a risk of
persecution, torture, cruel and unusual punishment or treatment upon return to
his country of origin, does such a finding render unnecessary the Minister's
consideration of the “nature and severity of acts committed” under paragraph
115(2)(b)?

2. If the lack of risk identified in question #1 is not determinative, is paragraph

115(2)(b) of the Immigration and Refugee Protection Act to be applied “on the
basis of the nature and severity of acts committed” by the criminal organization
of which the person is a member, or of acts committed by the person being
considered for removal (including acts of the criminal organization in which the
person was complicit)?

Preliminary matter

[3] The Minister of Public Safety and Emergency Preparedness is incorrectly named as

the respondent in the style of cause. Upon the parties’ consent, I hereby order that the style

of cause be changed so as to replace the Minister of Public Safety and Emergency

Preparedness with the Minister of Citizenship and Immigration as the proper respondent.

Background
 Page: 3

[4] The appellant is a Sri Lankan Tamil who came to Canada in 1994. He was granted

Convention refugee status in 1995 and permanent resident status in 1997.

[5] On August 24, 2001, the Minister issued a report under the former Immigration Act,

2008 FCA 153 (CanLII)

R.S.C. 1985, c. I-2 (the former Act) alleging that the appellant was inadmissible to Canada

on grounds of organized criminality. In issuing this report, a primary consideration of the

Minister was the appellant’s involvement with a Tamil gang known as the A.K. Kannan.

[6] In October 2001, the appellant was arrested and detained by immigration authorities

on the basis that he represented a danger to the public and was unlikely to appear for his

admissibility hearing or other immigration proceedings. Although the Immigration Division

of the Immigration and Refugee Board (the Board) later ruled that the appellant should be

released on certain terms and conditions, that Order was subsequently set aside by Justice

O’Keefe on December 17, 2004 (cited as 2004 FC 1757).

[7] On May 28, 2003, having found the appellant inadmissible to Canada for organized

criminality pursuant to paragraph 37(1)(a) of the Act, the Board ordered that he be deported.

An application by the appellant for the judicial review of this decision was later dismissed

by Justice Heneghan on October 12, 2004 (cited as 2004 FC 1397).

[8] On July 5, 2003, the appellant was notified that a determination would be made

under paragraph 115(2)(b) of the Act as to whether he should not be allowed to remain in
 Page: 4

Canada based on the “nature and severity of acts committed.” The appellant provided

submissions and evidence under cover letters dated August 8, 2003 and November 11, 2003.

[9] On July 20, 2004, the respondent sent the appellant a “Request for Minister’s

2008 FCA 153 (CanLII)

Opinion” dated July 13, 2004. Accordingly the appellant provided further submissions in

regards to the material disclosed.

[10] On October 4, 2005, the Opinion of the Minister pursuant to paragraph 115(2)(b)

was issued, subsequently being upheld by the Federal Court on February 28, 2007. Hence,

the present appeal.

Legislation

[11] The relevant provisions from the Act are as follows:

Organized criminality Activités de criminalité organisée

37. (1) A permanent resident or a foreign 37. (1) Emportent interdiction de territoire
national is inadmissible on grounds of pour criminalité organisée les faits suivants :
organized criminality for

(a) being a member of an organization that
is believed on reasonable grounds to be or
to have been engaged in activity that is part
of a pattern of criminal activity planned
and organized by a number of persons
acting in concert in furtherance of the
commission of an offence punishable
under an Act of Parliament by way of
indictment, or in furtherance of the
commission of an offence outside Canada
that, if committed in Canada, would
constitute such an offence, or engaging in
activity that is part of such a pattern; or
(a) être membre d’une organisation dont il
y a des motifs raisonnables de croire
qu’elle se livre ou s’est livrée à des
activités faisant partie d’un plan d’activités
criminelles organisées par plusieurs
personnes agissant de concert en vue de la
perpétration d’une infraction à une loi
fédérale punissable par mise en accusation
ou de la perpétration, hors du Canada,
d’une infraction qui, commise au Canada,
constituerait une telle infraction, ou se
livrer à des activités faisant partie d’un tel
plan;

Exclusion – Refugee Convention
98. A person referred to in section E or F of
Article 1 of the Refugee Convention is not a
Convention refugee or a person in need of
protection.
Protection
115. (1) A protected person or a person who is
recognized as a Convention refugee by
another country to which the person may be
returned shall not be removed from Canada to
a country where they would be at risk of
persecution for reasons of race, religion,
nationality, membership in a particular social
group or political opinion or at risk of torture
or cruel and unusual treatment or punishment.
Exceptions
(2) Subsection (1) does not apply in the case
of a person
(a) who is inadmissible on grounds of
serious criminality and who constitutes, in
the opinion of the Minister, a danger to
the public in Canada; or
(b) who is inadmissible on grounds of
security, violating human or international
rights or organized criminality if, in the
opinion of the Minister, the person should
not be allowed to remain in Canada on the
basis of the nature and severity of acts
committed or of danger to the security of
Canada.
Removal of refugee
(3) A person, after a determination under
paragraph 101(1)(e) that the person’s claim is
Page: 5
Exclusion par application de la Convention
sur les réfugiés
98. La personne visée aux sections E ou F de
l’article premier de la Convention sur les
2008 FCA 153 (CanLII)
réfugiés ne peut avoir la qualité de réfugié ni
de personne à protéger.
Principe
115. (1) Ne peut être renvoyée dans un
pays où elle risque la persécution du fait de sa
race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses
opinions politiques, la torture ou des
traitements ou peines cruels et inusités, la
personne protégée ou la personne dont il est
statué que la qualité de réfugié lui a été
reconnue par un autre pays vers lequel elle
peut être renvoyée.
Exclusion
(2) Le paragraphe (1) ne s’applique pas à
l’interdit de territoire:
(a) pour grande criminalité qui, selon le
ministre, constitue un danger pour le
public au Canada;
(b) pour raison de sécurité ou pour
atteinte aux droits humains ou
internationaux ou criminalité organisée si,
selon le ministre, il ne devrait pas être
présent au Canada en raison soit de la
nature et de la gravité de ses actes passés,
soit du danger qu’il constitue pour la
sécurité du Canada.
Renvoi de réfugié
(3) Une personne ne peut, après prononcé
d’irrecevabilité au titre de l’alinéa 101(1)e),

ineligible, is to be sent to the country from
which the person came to Canada, but may be
sent to another country if that country is
designated under subsection 102(1) or if the
country from which the person came to
Canada has rejected their claim for refugee
protection.
[12] The relevant provisions of the Convention Relating to the Status of Refugees, July
28, 1951, [1969] Can. T.S. No. 6 (the Convention) are as follows:
Article 1. - Definition of the term “refugee”
… […]
F. The provisions of this Convention shall not
apply to any person with respect to whom there
are serious reasons for considering that.
(a) He has committed a crime against peace,
a war crime, or a crime against humanity, as
defined in the international instruments
drawn up to make provision in respect of
such crimes;
(b) He has committed a serious non-political
crime outside the country of refuge prior to
his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the
purposes and principles of the United
Nations.
Article 33. - Prohibition of expulsion or return
("refoulement")
1. No Contracting State shall expel or return
("refouler") a refugee in any manner
whatsoever to the frontiers of territories where
his life or freedom would be threatened on
account of his race, religion, nationality,
membership of a particular social group or
political opinion.
Page: 6
être renvoyée que vers le pays d’où elle est
arrivée au Canada sauf si le pays vers lequel
elle sera renvoyée a été désigné au titre du
paragraphe 102(1) ou que sa demande d’asile
a été rejetée dans le pays d’où elle est arrivée
au Canada.
2008 FCA 153 (CanLII)
Article 1. - Définition du terme “réfugié”
F. Les dispositions de cette Convention ne
seront pas applicables aux personnes dont on
aura des raisons sérieuses de penser:
(a) Qu'elles ont commis un crime contre la
paix, un crime de guerre ou un rime contre
l'humanité, au sens des instruments
internationaux élaborés pour prévoir des
dispositions relatives à ces crimes;
(b) Qu'elles ont commis un crime grave de
droit commun en dehors du pays d'accueil
avant d'y être admises comme réfugiés;
(c) Qu'elles se sont rendues coupables
d'agissements contraires aux buts et aux
principes des Nations Unies.
Article 33. - Défense d'expulsion et de
refoulement
1. Aucun des États contractants n'expulsera ou
ne refoulera, de quelque manière que ce soit, un
réfugié sur les frontières des territoires où sa vie
ou sa liberté serait menacée en raison de sa race,
de sa religion, de sa nationalité, de son
appartenance à un certain groupe social ou de
ses opinions politiques.
 Page: 7

2. The benefit of the present provision may not,
however, be claimed by a refugee whom there
are reasonable grounds for regarding as a
danger to the security of the country in which
he is, or who, having been convicted by a final
judgement of a particularly serious crime,
2. Le bénéfice de la présente disposition ne
pourra toutefois être invoqué par un réfugié
qu'il y aura des raisons sérieuses de considérer
comme un danger pour la sécurité du pays où il
se trouve ou qui, ayant été l'objet d'une
condamnation définitive pour un crime ou délit

2008 FCA 153 (CanLII)

constitutes a danger to the community of that particulièrement grave, constitue une menace
country. pour la communauté dudit pays.

The Opinion of the Minister’s Delegate

[13] On October 4, 2005, the Minister’s Delegate, G.G. Alldridge (the Delegate), issued

an opinion pursuant to paragraph 115(2)(b) of the Act that the appellant should not be

allowed to remain in Canada based on the nature and severity of acts committed (AB 1, Tab

3, p. 001) (the Opinion).

[14] In deciding whether subsection 115(2) applied to the appellant, the Delegate

analyzed the following:

a. the nature and severity of acts committed;

b. the risk to the appellant’s life or of cruel and unusual punishment should he be

returned to his country; and

c. whether there were sufficient humanitarian and compassionate reasons to

warrant a favourable consideration.

a. Nature and severity of the acts committed

[15] In addressing the first point of analysis, the Delegate placed particular emphasis on

evidence supporting the appellant’s membership and involvement in the criminal activities

of the A.K. Kannan. From a report prepared by the Toronto Police Street Violence Task
 Page: 8

Force, the Delegate noted that this gang was responsible for a variety of criminal acts

including “murders, attempted murders, serious assaults, extortions, kidnappings, frauds,

drugs and weapons offences” (at paragraph 19 of the Opinion). The Delegate further

concluded that two shooting incidents where the appellant and his family had been targeted

2008 FCA 153 (CanLII)

were not random acts of violence, but rather retaliatory actions brought about by the

appellant’s status as an enforcer within the A.K. Kannan (at paragraph 28 of the Opinion).

[16] The Delegate also addressed the criminal activity of the appellant specifically. To

this end, the Delegate observed that the appellant had incurred relatively few criminal

convictions with two of these convictions resulting in imprisonment for short periods of

time between September 25, 2000 and January 25, 2001 (at paragraph 27 of the Opinion).

Moreover, it was observed that between 1997 and 2000 the appellant had been criminally

charged for possession and concealment of a weapon (a meat clever), threatening bodily

harm and intimidation, fraud, assault with a weapon and breach of probation.

[17] Consequently, the Delegate concluded that:

Following from the evidence noted above, including Mr. Nagalingam’s membership and
involvement in the A.K. Kannan, in my view, the nature and the severity of the acts
committed by the A.K. Kannan are serious and significant, and as such Mr. Nagalingam
should not be allowed to remain in Canada (at paragraph 29 of the Opinion).
[Emphasis added]

b. Risk to the appellant’s life or of cruel and unusual punishment

[18] The appellant claimed that if returned to Sri Lanka he would face a substantial risk

of torture, or a risk to life or to cruel and unusual treatment or punishment. This claim was

dismissed by the Delegate.

 Page: 9

[19] While the Delegate acknowledged the appellant’s status as a Convention refugee, he

also noted that the conditions in Sri Lanka had undergone “a significant change in

circumstances.” As a result, the Delegate concluded that there was insufficient evidence to

support a finding that it is more likely than not that the appellant would face a substantial

2008 FCA 153 (CanLII)

risk of torture, or a risk to life or to cruel and unusual treatment or punishment upon his

return to that country.

c. Humanitarian and compassionate considerations

[20] Despite the presence in Canada of the appellant’s common law spouse, their

Canadian born child, and other family members, the Delegate concluded that the appellant

did not warrant favourable consideration on humanitarian and compassionate grounds. He

writes:

51. …There is nothing in the material before me that would indicate that the child
has suffered adversely from separation from his father while he’s been incarcerated
and in detention for the past four years (and I make the same observation with
respect to Mr. Nagalingam’s other family members – including his common law
spouse ...)

53. …There is no indication in the material before me that there is a prohibition

against Mr. Nagalingam’s family from either living in or visiting him in Sri Lanka.
While mindful that Mr. Nagalingam has a Canadian spouse and child who would be
adversely affected by any enforced separation due to his removal from Canada as
well as considering the period of adjustment that Mr. Nagalingam will face at
having to start over in a strange country, which he left when he was 21 years of age,
I find that Mr. Nagalingam’s involvement in the organized crime milieu, leads me to
conclude that this is not an appropriate case warranting favourable consideration on
humanitarian and compassionate grounds.

[21] Proceeding on this basis, the Delegate opined that he “…need not undertake a

balancing exercise whereby the risk, the nature and severity of acts committed, and the
 Page: 10

humanitarian considerations are weighed against each other in accordance with the legal

principles enunciated by the Supreme Court of Canada, as this simply does not arise in this

case” (at paragraph 55 of the Opinion). Accordingly, the Delegate concluded that the

appellant should not be allowed to remain in Canada.

2008 FCA 153 (CanLII)

The Decision of the Federal Court

[22] The appellant sought judicial review of the Delegate’s decision on October 25, 2005.

In doing so, the appellant filed applications for a stay of the execution of his removal order

with the Federal Court and the Ontario Superior Court of Justice on November 16, 2005 and

December 4, 2005 respectively. As each of these applications was dismissed in due course,

the appellant was consequently removed from Canada in December 2005.

[23] In dismissing the application which forms the basis of the appeal before this Court,

Justice Kelen addressed four issues beginning with the question of whether the Delegate had

erred in concluding that the appellant’s removal to Sri Lanka would not expose him to a

substantial risk of torture or a risk to life or to cruel treatment or punishment. On this point,

Justice Kelen rejected the notion that the Delegate had failed to consider the appellant’s

status as a Convention refugee or any other relevant evidence in determining that he be

removed from Canada. The Delegate’s ruling on this issue was approved (at paragraph 39 of

the Reasons for Judgement).

[24] The second issue required an answer to the following question:

Having determined that the appellant, who is inadmissible on grounds of organized

criminality, does not face a risk, was it necessary for the Delegate to consider the
“nature and severity of acts committed” under paragraph 115(2)(b) of the Act?
 Page: 11

In Justice Kelen’s view, given that the Delegate had reasonably concluded that there was no

risk of harm, the non-refoulement provisions under subsection 115(1) did not apply and as

such there was no need to “balance” the competing interests under subsection 115(2).

2008 FCA 153 (CanLII)

Justice Kelen decided that unless the Delegate’s conclusions on risk were found to be

patently unreasonable, there was no basis for the court to review the Delegate’s assessment

of the nature and severity of acts committed or to engage in a balancing of that assessment

against the risk of harm upon the appellant’s removal (Ibid. at paragraph 47).

[25] In light of this finding, Justice Kelen stated that it was no longer necessary to address

the issue of complicity and whether one should consider the “nature and severity of the acts

committed” by the criminal organization rather than the appellant personally. Moreover, it

was equally unnecessary to consider whether the Delegate had erred in failing to account for

the appellant’s risk of persecution or the general constitutionality of the impugned provision.

Nonetheless, recognizing that he could be wrong, Justice Kelen continued his analysis on

these points (Ibid. at paragraph 52).

[26] On the issue of complicity and its relationship to the application of paragraph

115(2)(b), Justice Kelen concluded that the Delegate’s assessment should rest on the nature

and severity of the subject’s personal acts rather than the acts of the group with which he or

she is associated. In his view, the acts of the group would only gain relevance if it was

demonstrated that the subject was a personal and knowing participant in such acts, i.e.

complicit (Ibid. at paragraph 65). In the case at bar, Justice Kelen held that the Delegate had
 Page: 12

erred by basing his opinion on the criminal acts committed by the A.K. Kannan without ever

making an express finding that the appellant was actually “complicit” in those acts (Ibid. at

paragraph 68). He went on to state that if it were not for his approval of the Delegate’s

earlier authoritative conclusion on risk, he would have no choice but to refer the matter back

2008 FCA 153 (CanLII)

to another Delegate to determine if the appellant was complicit in the serious criminal acts

of the gang for the purposes of paragraph 115(2)(b) of the Act (Ibid. at paragraph 68).

[27] Finally, Justice Kelen rejected the arguments that the Delegate had failed to consider

the appellant’s risk of persecution or the constitutionality of paragraph 115(2)(b).

Specifically, Justice Kelen held that the Delegate had adequately canvassed the issue of

persecution throughout his decision and that due to the absence of risk in that regard, the

appellant’s Charter rights under section 7 were not engaged (Ibid. at paragraph 74).

[28] Consequently, Justice Kelen dismissed the application for judicial review and

certified the questions which are stated above at paragraph [2] and form the basis for our

analysis, outlined as follows:

OUTLINE
Analysis
A. Standard of review.................................................................................................paras. 29-35
B. Certified Question #1 ............................................................................................paras. 36-45
C. Certified Question #2 ............................................................................................paras. 46-76
(1) Standard of proof.............................................................................paras. 47-50
(2) Acts committed.................................................................................paras. 51-68
(3) Nature and severity of the acts .......................................................paras. 69-76
D. Application to the Delegate’s findings.................................................................paras. 77-80
E. Remedies sought ....................................................................................................paras. 81-82
Conclusions ...............................................................................................................paras. 83-84
 Page: 13

Analysis

A. Standard of Review

[29] Pursuant to paragraph 74(d) of the Act, a decision of the Federal Court on an

application for judicial review may be appealed to this Court only if a question is

2008 FCA 153 (CanLII)

certified by the Federal Court judge. The certification of a “question of general

importance” is the trigger by which an appeal is justified. However, the object of the

appeal is still the judgment itself, not merely the certified question (Pushpanathan v.

Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 25).

Therefore, I propose to address all the issues raised by this appeal (Baker v. Canada

(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 12 [Baker]).

[30] As it arises from a decision of a judge sitting in judicial review, the principles

outlined in Housen v. Nikolaisen, 2002 SCC 33 apply: the selection of the proper standard of

review constitutes a question of law and is reviewable on a standard of correctness

(Dr Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at

paragraph 43 [Dr Q]). Ultimately, should this Court identify an error at this stage of the

analysis, it will become necessary “to correct the error, substitute the appropriate standard of

review, and assess or remit the [Delegate's] decision on that basis” (Lai v. Canada (Minister

of Citizenship and Immigration), 2005 FCA 125 at paragraph 19; See also Dr Q, supra at

paragraph 43).

[31] On March 7, 2008 the Supreme Court of Canada issued its long awaited decision in

Dunsmuir v. New Brunswick, 2008 SCC 9 where it revisited the approach to be taken in the

judicial review of decisions of administrative tribunals. Among the most salient features
 Page: 14

was the Supreme Court’s decision to reduce the available standards of review from three to

two, collapsing the standard of reasonableness and patent unreasonableness into “a single

form of ‘reasonableness’ review” (Ibid. at paragraph 45). In determining which of the

remaining two standards would be appropriate in a given set of circumstances, the Supreme

2008 FCA 153 (CanLII)

Court proposed a two-step process:

First, courts ascertain whether the jurisprudence has already determined in a

satisfactory manner the degree of [deference] to be accorded with regard to a
particular category of question. Second, where the first inquiry proves unfruitful,
courts must proceed to an analysis of the factors making it possible to identify the
proper standard of review (Ibid. at paragraph 62).

[32] In this case, drawing on the Supreme Court’s decision in Suresh v. Canada (Minister

of Citizenship and Immigration), 2002 SCC 1 at paragraph 41 [Suresh], Justice Kelen

determined that the factual findings of the Delegate required a reviewable standard of patent

unreasonableness (at paragraph 18 of the Reasons for Judgment). In light of Suresh, and

more recently Dunsmuir, I agree with Justice Kelen that a high degree of deference is to be

afforded to the Delegate’s factual findings such that the appropriate standard of review is

reasonableness.

[33] As for questions of law, Justice Kelen applied a standard of correctness (at

paragraph 19 of the Reasons for Judgment). In Dunsmuir, the Supreme Court indicated that

questions of law could at points attract either standard of review. To this end, Justice

Bastarache and Justice Lebel, on behalf of the majority explained:

55 A consideration of the following factors will lead to the conclusion that the
decision maker should be given deference and a reasonableness test applied:
- A privative clause: this is a statutory direction from Parliament or a
legislature indicating the need for deference.
 Page: 15

- A discrete and special administrative regime in which the decision

maker has special expertise (labour relations for instance).

- The nature of the question of law. A question of law that is of "central

importance to the legal system ... and outside the ... specialized area of
expertise" of the administrative decision maker will always attract a

2008 FCA 153 (CanLII)

correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other
hand, a question of law that does not rise to this level may be compatible
with a reasonableness standard where the two above factors so indicate.

[34] In the case at bar, I note that there is no privative clause in the Act, rather the right to

judicial review before the Federal Court is expressly provided so long as leave is granted

(sections 72 to 75). Additionally, the questions of law in this appeal demand the

interpretation and application of general common law and international law principles for

which the Delegate does not have more expertise than the Court. As a result, I conclude that

Justice Kelen applied the proper standard of review to the questions of law raised in this

application for judicial review, i.e. correctness.

[35] Therefore, as no error was committed by Justice Kelen in the determination of the

proper standards of review, I turn my attention to the first certified question.

B. Certified Question #1

[36] Both certified questions call for a proper understanding of the international legal

principle of non-refoulement, found at Article 33(1) of the Convention and incorporated into

Canadian law by subsection 115(1) of the Act. Subsection 115(1) prohibits the return of

Convention refugees and protected persons to any country where they would be at risk of
 Page: 16

persecution for reasons of race, religion, nationality, membership in a particular social group

or political opinion, or at risk of torture or cruel and unusual treatment or punishment.

[37] While it is acknowledged that this rule forms the cornerstone of asylum in

2008 FCA 153 (CanLII)

international refugee law, its protection is not absolute. Indeed, subsection 115(2), which in

turn incorporates Article 33(2) of the Convention into Canadian law, expressly allows to

derogate from this principle where the subject is (a) found inadmissible on grounds of

serious criminality and constitutes, in the opinion of the Minister, a danger to the public in

Canada or (b) found inadmissible on grounds of security, violating human or international

rights or organized criminality if, in the opinion of the Minister, the person should not be

allowed to remain in Canada on the basis of the nature and severity of acts committed or of

danger to the security of Canada.

[38] Applying this principle to the first question at issue, I agree with the parties that

Justice Kelen erred when he held that an analysis of the nature and severity of acts

committed by the appellant under subsection 115(2) of the Act became unnecessary in the

absence of risk to the appellant upon his removal from Canada (at paragraph 40 of the

Reasons for Judgment).

[39] In Ragupathy v. Canada (Minister of Citizenship and Immigration), 2006 FCA 151

[Ragupathy] this Court set out a logical sequence of analysis when discussing the elements

of a ‘danger opinion’ issued under paragraph 115(2)(a). Specifically, this Court held that

once the protected person has been found inadmissible on grounds of serious criminality,
 Page: 17

the next logical step is to assess whether the individual poses a danger to the public (at

paragraph 17). The Court continued:

18. If the delegate is of the opinion that the presence of the protected person does
not present a danger to the public that is the end of the subsection 115(2) inquiry.

2008 FCA 153 (CanLII)

He or she does not fall within the exception to the prohibition in subsection 115(1)
against the refoulement of protected persons and may not be deported. If, on the
other hand, the delegate is of the opinion that the person is a danger to the public,
the delegate must then assess whether, and to what extent, the person would be at
risk of persecution, torture or other inhuman punishment or treatment if he was
removed. At this stage, the delegate must determine how much of a danger the
person's continuing presence presents, in order to balance the risk and, apparently,
other humanitarian and compassionate circumstances, against the magnitude of the
danger to the public if he remains.

[40] While Justice Kelen correctly noted that the Delegate had first assessed the nature

and severity of acts committed and second, determined that that the risk of harm upon

removal was non-existent, he erred when declaring that pursuant to Ragupathy, the

Delegate could reverse his order of analysis (at paragraph 46 of the Reasons for Judgment).

In Justice Kelen’s view, the need to assess the nature and severity of acts committed

became inconsequential as there was no risk of harm upon the subject’s return. That being

the case, the principle of non-refoulement as outlined in subsection 115(1) of the Act was

of no application in this instance (at paragraph 43 of the Reasons for Judgment).

[41] Respectfully, I find that Justice Kelen ignored the structure of section 115, as well

as Canada’s overall responsibilities with regards to the Convention, when finding that the

absence of risk for the appellant, if returned to Sri Lanka, was determinative of his right to

non-refoulement.
 Page: 18

[42] The scope of section 115 is such that the principle of non-refoulement continually

applies to a protected person or a Convention refugee until one of the two exceptions listed

therein is engaged. Thus, to determine that the principle of non-refoulement no longer

applies simply because the conditions in the protected person’s or the Convention refugee’s

2008 FCA 153 (CanLII)

country of origin have improved is to short-circuit the process.

[43] The approach of Justice Kelen essentially forces the Delegate to act beyond his

jurisdiction, ruling on the appellant’s status as a Convention refugee, rather than whether

the nature and severity of the acts committed deprive him of the benefits associated with

that status (i.e. not to be refouled). To this end, I agree with the respondent that the

Ragupathy approach ensures that the Delegate maintains his jurisdiction as his role is not in

any way to remove or alter the subject’s status as Convention refugee (respondent’s

memorandum at paragraph 71). Proceeding in this manner guarantees that the Delegate’s

function will not usurp the role of the Refugee Protection Division on a cessation

determination pursuant to subsection 108(2) of the Act.

[44] By way of summary then, the principles applicable to a delegate’s decision under

paragraph 115(2)(b) of the Act and the steps leading to that decision are as follows:

(1) A protected person or a Convention refugee benefits from the principle of non-

refoulement recognized by subsection 115(1) of the Act, unless the exception

provided by paragraph 115(2)(b) applies;

 Page: 19

(2) For paragraph 115(2)(b) to apply, the individual must be inadmissible on

grounds of security (section 34 of the Act), violating human or international

rights (section 35 of the Act) or organized criminality (section 37 of the Act);

(3) If the individual is inadmissible on such grounds, the delegate must determine

2008 FCA 153 (CanLII)

whether the person should not be allowed to remain in Canada on the basis of

the nature and severity of acts committed or of danger to the security of Canada;

(4) Once such a determination is made, the delegate must proceed to a section 7 of

the Charter analysis. To this end, the Delegate must assess whether the

individual, if removed to his country of origin, will personally face a risk to life,

security or liberty, on a balance of probabilities. This assessment must be made

contemporaneously; the Convention refugee or protected person cannot rely on

his or her status to trigger the application of section 7 of the Charter (Suresh,

supra at paragraph 127).

(5) Continuing his analysis, the Delegate must balance the nature and severity of the

acts committed or of the danger to the security of Canada against the degree of

risk, as well as against any other humanitarian and compassionate considerations

(Suresh, supra at paragraphs 76-79; Ragupathy, supra at paragraph 19).

[45] That being said, I propose to answer “no” to the first certified question as the

Delegate failed to follow the steps suggested above in forming his opinion.
 Page: 20

C. Certified Question #2:

[46] In addressing the second certified question, I propose to discuss the following:

(1) the standard of proof required to bring the appellant under the exception of

paragraph 115(2)(b);

2008 FCA 153 (CanLII)

(2) the question of whether the acts to be considered under paragraph 115(2)(b) are

the acts committed by the criminal organization of which the person is a

member, or the acts committed in the context of organized criminality by the

individual, either directly or through complicity;

(3) the appropriate threshold that must be met before an act is considered of such

nature and severity that the perpetrator should no longer be allowed to stay in

Canada.

(1) Standard of proof under paragraph 115(2)(b) of the Act: reasonable grounds

[47] The determination of the proper standard of proof required to bring the appellant

under the exceptions of paragraph 115(2)(b) is important, as an error on the standard would

undeniably permeate the interpretation of the law and the review of the evidence.

[48] As noted above, subsections 115(1) and (2) of the Act incorporate the principle of

non-refoulement along with its exceptions into Canadian law.

[49] Although subsection 115(2) does not explicitly re-state the evidentiary threshold of

“reasonable grounds” found at Article 33(2) of the Convention, it does confer to the

Minister a discretionary power to decide “if, in (his) opinion, the person should not be
 Page: 21

allowed to remain in Canada.” In my view, this discretionary power, examined within the

structure of section 115 of the Act, is consistent with a standard of reasonable grounds.

Discretionary decisions will generally be afforded considerable deference. However, I

hasten to add “that discretion must be exercised in accordance with the boundaries imposed

2008 FCA 153 (CanLII)

in the statute, the principles of the rule of law, the principles of administrative law, the

fundamental values of Canadian society, and the principles of the Charter” (Baker, supra at

paragraph 56).

[50] I therefore conclude that the proper standard for a determination under subsection

115(2) of the Act is reasonable grounds. In doing so, I note that this standard has previously

been articulated as being:

…a standard of proof that, while falling short of a balance of probabilities,

nonetheless connotes "a bona fide belief in a serious possibility based on credible
evidence." See Attorney General of Canada v. Jolly, [1975] F.C. 216 (F.C.A.).

(2) The acts committed by the appellant in the context of organized criminality:

Complicity

[51] I agree with Justice Kelen that the “acts committed” which are relevant under

paragraph 115(2)(b) are those committed personally by the appellant. This proposition is

supported by a basic reading of the French version of the provision and namely its use of the

phrase “ses actes passés” (literally translated by “his past acts”). As Justice Kelen noted, this

passage is plain, unambiguous and best reflects the intention of Parliament that the acts to be

considered are those committed personally by the appellant (at paragraphs 59, 60 of Reasons

for Judgment). That said, I further agree that such a finding does not negate the possibility of
 Page: 22

relying on the acts committed by the criminal organization as a whole, so long as it is

established that the appellant was complicit in the commission of those acts.

[52] However, I do not agree with Justice Kelen when he relies on Ramirez v. Canada

2008 FCA 153 (CanLII)

(Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), [Ramirez], to define

complicity in the context of organized criminality. The definition he adopts, usually referred

to as “complicity by association”, has been recognized as a method of perpetrating an

offence in respect of certain international crimes covered by Article 1F(a) of the Convention

(crimes against peace, war crimes and crimes against humanity), and by analogy in the case

of acts contrary to the international purposes and principles sought by Article 1F(c) of the

Convention (Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, at

paragraph 137 by Décary J. (concurring)).

[53] He states in his reasons:

[64] This test for complicity under the Act has been settled by the Court with
respect to crimes against humanity. Such crimes are also part of paragraph
115(2)(b), and this is a reasonable one for the purposes of establishing complicity
under paragraph 115(2)(b). See my decision in Catal v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1875 at paragraphs 8 and 9.

[54] “Complicity by association” has been applied in Canadian immigration law in the

context of section 98 (subsection 2(1) of the former Immigration Act) as well as section 35

of the Act (Ramirez, supra; Sivakumar v. Canada (Minister of Citizenship and

Immigration), [1994] 1 F.C. 433 (C.A.); Zazai v. Canada (Minister of Citizenship and
 Page: 23

Immigration), 2005 FCA 303; Lennikov v. Canada (Minister of Citizenship and

Immigration), 2007 FC 43).

[55] In Ramirez, supra, the most controversial legal issue dealt with the extent to which

2008 FCA 153 (CanLII)

accomplices as well as principal actors in international crimes should be excluded from

Convention refugee status. To this end, Justice MacGuigan writes:

12. The Convention provision [1F(a)] refers to "the international instruments

drawn up to make provisions in respect of such crimes." One of these instruments
is the London Charter of the International Military Tribunal, Article 6 of which
provides in part (reproduced by Grahl-Madsen, at page 274):

Leaders, organisers, instigators and accomplices participating in

the formulation or execution of a common plan or conspiracy to
commit any of the foregoing crimes are responsible for all acts
performed by any persons in execution of such plan.

I believe this evidence is decisive of the inclusion of accomplices as well as

principal actors, but leaves to be answered the very large question as to the extent
of participation required for inclusion as an "accomplice".

13. It was common ground to both parties during argument that it is not
open to this Court to interpret the "liability" of accomplices under this
Convention exclusively in the light of section 21 of the Canadian Criminal Code
[R.S.C., 1985, c. C-46], which deals with parties to an offence, since that
provision stems from the traditional common law approach to "aiding" and
"abetting."4 An international convention cannot be read in the light of only one of
the world's legal systems.

[56] Article 1F(a) of the Convention refers to international instruments and section 98 of

the Act incorporates Article 1F into Canadian law. It is in that context that the traditional

common law approach to complicity was excluded.

 Page: 24

[57] While I concede that the approach taken by Justice Kelen would apply to a

determination under paragraph 115(2)(b) where a person has been found inadmissible under

section 35 (human or international rights violation), I do not think that the same can be said

for a person declared inadmissible pursuant to section 37 (organized criminality). In terms of

2008 FCA 153 (CanLII)

the later provision, Parliament has chosen to define ‘organized criminality’ by referring to

“criminal activity planned and organized by a number of persons acting in concert in

furtherance of the commission of an offence punishable under an Act of Parliament”

(Emphasis added).

[58] I would suggest that this wording constitutes a clear invitation to apply our domestic

laws to determine whether a person is complicit in the commission of certain acts within

organized criminality. Unlike in Ramirez, I can find no reason in the case of organized

criminality to conclude otherwise.

[59] Section 21 of the Criminal Code, R.S.C. 1985, c. C-46 (Criminal Code or Cr.C.) sets

out the liability of principals and parties to an offence. It will most often apply when dealing

with complicity. It reads as follows:

21. (1) Every one is a party to an offence
who
(a) actually commits it;
(b) does or omits to do anything for the
purpose of aiding any person to
commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an
intention in common to carry out an
unlawful purpose and to assist each other
therein and any one of them, in carrying out
21. (1) Participent à une infraction :
a) quiconque la commet réellement;
b) quiconque accomplit ou omet
d’accomplir quelque chose en vue
d’aider quelqu’un à la commettre;
c) quiconque encourage quelqu’un à la
commettre.
(2) Quand deux ou plusieurs personnes
forment ensemble le projet de poursuivre
une fin illégale et de s’y entraider et que
l’une d’entre elles commet une infraction en
 Page: 25

the common purpose, commits an offence,
each of them who knew or ought to have
known that the commission of the offence
would be a probable consequence of
carrying out the common purpose is a party
to that offence.
réalisant cette fin commune, chacune
d’elles qui savait ou devait savoir que la
réalisation de l’intention commune aurait
pour conséquence probable la perpétration
de l’infraction, participe à cette infraction.

2008 FCA 153 (CanLII)

[60] Paragraph 21(1)(a) holds an accused liable for the role as principal if he or she

committed that offence.

[61] Paragraph 21(1)(b) makes an accused liable as a party for acts or omissions which

are done for the purpose of aiding a principal to commit an offence while paragraph 21(1)(c)

makes the accused similarly liable if he or she abetted the principal.

[62] Although the terms aiding and abetting are commonly associated, the two concepts

are not the same. To aid under paragraph 21(1)(b) means to assist or help the perpetrator

while to abet, within the meaning of paragraph 21(1)(c), includes encouraging, instigating,

promoting or procuring the crime to be committed: R. v. Greyeyes, [1997] 2 S.C.R. 825 at

paragraph 26; also cited in: R. v. Smith, 2007 NSCA 19 at paragraph 148; Zrig v. Canada

(Minister of Citizenship and Immigration), 2003 FCA 178 at paragraph 166 by Décary J.

(concurring).

[63] In elucidating the meaning of aiding and abetting, Justice Dickson in R. v. Dunlop,

[1979] 2 S.C.R. 881, at pages 891, 896, writes:

Mere presence at the scene of a crime is not sufficient to ground culpability.

Something more is needed: encouragement of the principal offender; an act which
facilitates the commission of the offence, such as keeping watch or enticing the
 Page: 26

victim away, or an act which tends to prevent or hinder interference with

accomplishment of the criminal act, such as preventing the intended victim from
escaping or being ready to assist the prime culprit.
…
[However] presence at the commission of an offence can be evidence of
aiding and abetting if accompanied by other factors, such as prior knowledge

2008 FCA 153 (CanLII)

of the principal offender's intention to commit the offence or attendance for
the purpose of encouragement.

[64] Complicity in Canadian law is however not limited to this concept of aiding and

abetting. For example, subsection 21(2) of the Cr.C. extends the liability of the principal and

parties beyond the wrongful act originally intended. In the absence of aiding and abetting, a

person may even become a party to an offence committed by another which he knew or

ought to have known was a probable consequence of carrying out the unlawful purpose:

R. v. Simpson, [1988] 1 S.C.R. 3 at paragraph 14.

[65] Our Criminal Code also contains provisions relating to (a) other forms of liability

such as sections 23 and 463, accessory after the fact; section 465, conspiracy; and (b)

liability of a secondary party such as section 146, assisting escape and section 240,

accessory after the fact to murder, to name a few that appear more relevant in the context of

organized criminality.

[66] However, it is not necessary nor is it appropriate for this appeal to address all the

provisions that might apply to a particular situation. Suffice to say that, in the context of

paragraph 115(2)(b) of the Act, when a person has been found inadmissible for organized

criminality, one has to refer to Canadian law and not international law, in order to establish

if the person was a party to an act of such nature and severity as to warrant his or her
 Page: 27

removal. One must also note that section 37 of the Act contains its own definition of

organised criminality distinct from that of subsection 467.1(1) of the Criminal Code (on

subsection 467.1(1) of the Cr.C., see R. v. Terezakis, 2007 BCCA 384, leave to appeal to the

S.C.C. dismissed: [2007] S.C.C.A. No. 487).

2008 FCA 153 (CanLII)

[67] Before concluding on that issue, I make two further comments. First, while it is

understood that the provisions of the Criminal Code will play an important role in a

determination of complicity in the context cited above, (especially when we consider

subsection 34(2) of the Interpretation Act, R.S.C. 1985, c. I-21), it is not excluded that other

Acts of Parliament may apply to a particular situation on a finding of complicity (see

subsection 4(4) of the Cr.C). Second, reference to criminal law in the context of

immigration matters has to be made with circumspection and with the required adaptations,

especially since the proper standard of proof applicable to subsection 115(2) of the Act is

reasonable grounds and not beyond reasonable doubt.

[68] That being said, I have reached the view that when applying paragraph 115(2)(b) in

relation to an individual found inadmissible for reasons of organized criminality (section 37

of the Act), there must be reasonable grounds to believe that the person committed, himself

or through complicity, as defined in our criminal legal system, acts of organized criminality.

(3) Nature and severity of the acts: a high threshold

[69] In addressing my final point of analysis on the second certified question, I accept the

appellant’s argument that the “fundamental character of the prohibition of refoulement and
 Page: 28

the humanitarian essence of the … Convention more generally, must be taken as

establishing a high threshold for the operation of exceptions” (Lauterpacht, sir E. and D.

Bethlehem, “The scope and content of the principle of non-refoulement” in Refugee

Protection in International Law (Cambridge: E. Feller, V. Turk and F. Nicholson, 2003) at

2008 FCA 153 (CanLII)

paragraph 169).

[70] This idea of a “high threshold for the operation of exceptions” is supported by the

wording of the Act itself and the choices made by Parliament. Specifically, I note that

paragraph 115(2)(a) applies where the person has been found inadmissible for serious

criminality, as defined by subsection 36(1) of the Act, that is, for convictions relating to “an

offence under an Act of Parliament punishable by a maximum term of imprisonment of at

least 10 years, or of an offence under an Act of Parliament for which a term of

imprisonment of more than six months has been imposed.” Conversely, inadmissibility for

criminality pursuant to subsection 36(2) does not fall within the exceptions of paragraph

115(2)(a) or (b), thereby indicating that minor offences were not contemplated as meeting

this particular threshold. This is even more so when we consider that, for paragraph

115(2)(a) to apply, the individual has to be found, in the opinion of the Minister, to be “a

danger to the public in Canada”.

[71] Indeed, as Lauterpacht and Bethlehem note:

186. The text of Article 33(2) makes it clear that it is only convictions for crimes of
a particularly serious nature that will come within the purview of the exception. This
double qualification-particularly and serious- is consistent with the restrictive scope
of the exception and emphasizes that refoulement may be contemplated pursuant to
this provision only in the most exceptional of circumstances. Commentators have
 Page: 29

suggested that the kinds of crimes that will come within the purview of the
exception will include crimes such as murder, rape, armed robbery, arson, etc.
[References omitted]

2008 FCA 153 (CanLII)

[72] This same restrictive approach applies to paragraph 115(2)(b). I note that, under

this paragraph, inadmissibility on grounds of organised criminality is treated with the same

importance as inadmissibility on security grounds (section 34) or inadmissibility for

violating human or international rights (section 35). Under those two sections, a person is

inadmissible for, among other things:

• Engaging in an act of espionage or an act of subversion against a democratic

government, institution or process as they are understood in Canada (34(1)(a));

• Engaging in terrorism (34(1)(c));

• Committing an act outside Canada that constitutes an offence referred to in sections

4 to 7 of the Crimes against Humanity and War Crimes Act (35(1)(a)).

[73] Despite the critical nature of these infractions, Parliament has nonetheless given the

Minister the discretion to assess the nature and severity of the acts before determining if the

subject should be refouled under paragraph 115(2)(b). This, to me, suggests that paragraph

115(2)(b) will only be triggered where the acts committed are of substantial gravity.

[74] Consequently, I endorse the ruling of Justice Kelen that “the logical reason to

examine the nature and gravity of the personal acts committed by the refugee is that the

refugee should not be refouled only because he is a member of a criminal organization

unless the acts in which he was involved warrant removal”(Emphasis added) (at paragraph
 Page: 30

61 of Reasons for Judgment). The high threshold lies in the nature and severity of the acts

committed.

[75] Therefore, I propose to answer the second certified question as follows:

2008 FCA 153 (CanLII)

The exception of paragraph 115(2)(b) regarding organized criminality will apply to a

Convention refugee or a protected person if, in the opinion of the Minister, that

person should not be allowed to remain in Canada on the basis of the nature and

substantial gravity of acts committed (in the context of organized criminality)

personally or through complicity, as defined by our domestic laws, but established

on a standard of reasonable grounds.

[76] Therefore, the Delegate had to reasonably link the appellant to the acts of the

organization in which he was a member, taking into consideration, if applicable, his role and

responsibilities within the criminal organization. In doing so, the Delegate had to caution

himself that it is only in exceptional cases that a Convention refugee or a protected person

will lose the benefit of subsection 115(1). Thus, only acts which are of substantial gravity

will meet this high threshold.

D. Application to the Delegate’s findings

[77] Justice Kelen found that the Delegate failed to “make an express finding that the

applicant was complicit in the serious and significant criminal acts of the gang.” (at

paragraph 68 of the Reasons for Judgment). I agree in part. The Delegate failed to conduct
 Page: 31

an adequate analysis leading to a finding of complicity. However, an express finding is not

required (Sittampalam v. Canada (M.C.I. and M.P.S.E.P.), 2007 FC 687 at paragraph 43).

[78] In this case, the Delegate found that the A.K. Kannan was a criminal organization

2008 FCA 153 (CanLII)

generally involved in severe criminal acts, and that the appellant was an active member in

that group. This is not sufficient to meet the threshold of paragraph 115(2)(b) of the Act. On

this point, I note that the specific rank of the appellant within the A.K. Kannan criminal

organization is unclear. In the Request for Minister’s Opinion, supra, the appellant is said to

be a “leader” by a source “confirmed [to be] reliable” (at paragraph 24), whereas in the

Delegate’s Opinion, he is referred to as an “enforcer” on the basis of a witness’ statement

who later disowned his prior declaration to that effect.

[79] While this general approach used by the Delegate would be consistent with a

determination under paragraph 37(1)(a) of the Act, it falls short of meeting the personalized

fact-driven inquiry dictated by paragraph 115(2)(b) of the same Act. Ultimately, not having

to make an express finding of complicity does not mean that the Delegate was not required

to conclude, on reasonable grounds, that the evidence pointed to the appellant as being

complicit in the acts of organized criminality committed by the organization, acts that were

of such nature and severity as to warrant his removal. The Delegate failed to do so.

[80] To that effect, I propose to remit the matter back to the Minister for reconsideration

in accordance with the law. Considering that conclusion, it is therefore not appropriate to

address the issue of risk assessment.

 Page: 32

E. Remedies Sought

[81] The appellant requests, among other remedies, that this Court compels the

respondent to assist him to return to Canada on an urgent basis so that he may remain in

Canada while his case is being reconsidered (appellant’s memorandum at paragraph 76).

2008 FCA 153 (CanLII)

[82] The record indicates no special circumstances for this Court to compel the Minister

to act in a particular fashion. Despite the legal errors committed by the Delegate during the

examination of the appellant’s file, his rights to a fair process were never breached. Indeed

such an issue was never raised in argument. Furthermore, the Minister is acutely aware of

his obligations under the Act and this Court has no reason to intervene, or to presume that

these obligations will not be met.

Conclusions

[83] In light of the foregoing, I would allow the appeal without costs, set aside the

decision of the Federal Court, allow the application for judicial review and remit the matter

back to the Delegate for re-determination in accordance with the present reasons.

[84] I propose, as well, to answer the certified questions as follows:

Question 1

If, in the preparation of an opinion under paragraph 115(2)(b) of the Immigration

and Refugee Protection Act , the Minister finds that a refugee who is inadmissible on

grounds of organized criminality does not face a risk of persecution, torture, cruel

and unusual punishment or treatment upon return to his country of origin, does such
 Page: 33

a finding render unnecessary the Minister’s consideration of the “nature and severity

of acts committed” under paragraph 115(2)(b)?

Answer: No

2008 FCA 153 (CanLII)

Question 2

If the lack of risk identified in question #1 is not determinative, is paragraph

115(2)(b) of the Immigration and Refugee Protection Act to be applied “on the

basis of the nature and severity of acts committed” by the criminal organization of

which the person is a member, or of acts committed by the person being

considered for removal (including acts of the criminal organization in which the

person was complicit)?

Answer: The exception of paragraph 115(2)(b) regarding organized criminality will

apply to a Convention refugee or a protected person if, in the opinion of the

Minister, that person should not be allowed to remain in Canada on the basis of the

nature and substantial gravity of acts committed (in the context of organized

criminality) personally or through complicity, as defined by our domestic laws, but

established on a standard of reasonable grounds.

“Johanne Trudel”
J.A.
“I agree
Robert Décary J.A.”
“I agree
M. Nadon J.A.”
 FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-170-07

2008 FCA 153 (CanLII)

(APPEAL FROM A JUDGMENT OF JUSTICE KELEN, 2007 FC 229, File IMM-6447-
05)

STYLE OF CAUSE: Panchalingam Nagalingam

Appellant
The Minister of Citizenship and
Immigration
Respondent

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: January 24, 2008

REASONS FOR JUDGMENT BY: Trudel JA

CONCURRED IN BY: Décary JA

Nadon JA

DATED: April 24, 2008

APPEARANCES:

Ms Barbara Jackman FOR THE APPELLANT

Mr. Andrew Brouwer

Ms Bridgett O'Leary FOR THE RESPONDENT

Ms Amy Lambiris

SOLICITORS OF RECORD:

Jackman & Associates FOR THE APPELLANT

Toronto, Ontario

John H. Sims, QC FOR THE RESPONDENT

Deputy Attorney General of Canada